A court's recent ruling illustrates just how tricky the Stored
Communications Act can be. The ruling highlights the uncertainty that companies
face in cases involving electronic communications, but experts say the decision
should also be instructive for employers.

By Mark McGraw

Tuesday, October 1, 2013

The
Stored Communications Act was designed -- as the name implies -- to protect the
privacy of stored electronic communications.

Enacted
in 1986 -- long before the Internet and even longer before social media -- it's
safe to say digital communication has expanded over the years, and the
proliferation of Facebook, Twitter and the like makes navigating the legal
minefields associated with the SCA a much tougher task for employers in 2013.

A
New Jersey district court's recent ruling illustrates just how tricky the SCA
can be, but could also help employers and HR better understand the legislation's
nuances, experts say.

In
the case of Ehling v. Monmouth-Ocean Hospital Service Corp. (MONOC), the
court found that -- while the SCA does protect employees' Facebook wall posts
-- the defendant company fell within an exception to the Act because it didn't
seek out the information from the plaintiff's Facebook page that eventually got
her suspended from her job.

According
to court records, Deborah Ehling -- a registered nurse and paramedic at MONOC
-- posted the following to her Facebook wall on June 8, 2009:

"An
88 yr old sociopath white supremacist opened fire in the Wash D.C. Holocaust
Museum this morning and killed an innocent guard (leaving children). Other
guards opened fire. The 88 yr old was shot. He survived. I blame the DC
paramedics. I want to say 2 things to the DC medics. 1. WHAT WERE YOU THINKING? and 2.
This was your opportunity to really make a difference! WTF!!!! And to the other
guards … go to target practice."

Among
Ehling's approximately 300 Facebook friends was Tim Ronco, another MONOC
paramedic and one of many co-workers Ehling counted as friends on the social
networking site. Unbeknownst to Ehling, Ronco took screenshots of her
aforementioned wall post, and presented them to Andrew Caruso, a manager at
MONOC, in both email and hard copy form.

Court
records indicate Caruso "never asked Ronco for any information about
[Ehling], and never requested that Ronco keep him apprised of [her] Facebook
activity. The evidence reflects that Ronco independently came up with the idea
to provide [Ehling's] Facebook posts to Caruso."

Upon
receiving copies of the post in question, Caruso passed them on to the
hospital's executive director of administration, and Ehling was temporarily
suspended with pay, in addition to receiving a memo stating the hospital's
management was concerned that her comment reflected a "deliberate
disregard for patient safety."

After
initially filing a complaint with the National Labor Relations Board -- which
found the hospital did not violate the National Labor Relations Act -- Ehling
brought a lawsuit under the Stored Communications Act, alleging her wall posts
were protected under the SCA, as she had selected privacy settings that
afforded access to her page only to her Facebook friends.

In
the suit, Ehling maintained Ronco was summoned to Caruso's office and coerced
into accessing his Facebook account in Caruso's presence. The court determined
this wasn't the case; a determination that proved pivotal in clearing MONOC of
wrongdoing in its suspension of Ehling.

The
district court ultimately ruled that, while the Stored Communications Act
protects employees' Facebook wall posts, MONOC qualified for an exception to
the Act in this case, as it did not seek out the screen shots Ronco presented
to Caruso.

As
noted by the judge in this case, few courts have addressed this aspect of the
Stored Communications Act, "likely because most employees tend to file an
unfair labor practice charge with the National Labor Relations Board for
similar types of infractions," says Terri Stewart, an Atlanta-based
attorney with employment and labor law firm Fisher & Phillips.

The
NLRB, however, "has been active in the social media arena lately,"
adds Stewart.

As
the Ehling case illustrates, however, employers do have ways to protect
themselves and avoid liability in cases involving the SCA. Protection starts
with an effective social media and electronic communications policy, says
Stewart.

"There
is no liability under the SCA for non-electronic access to information,"
she says. "Thus, if an employer has a company policy that prevents the
employee from having an expectation of privacy in their office, the company
could potentially take action against this employee based on that same
information -- available electronically -- if it is accessible via hard copy in
the employee's office.

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"Additionally,
if someone brings the electronic, private information to the employer without
the employer forcing or requiring the employee to provide it, there is no
liability, as was the case in the recent New Jersey decision."

Nevertheless,
employers must be very careful to avoid accusations of coercion, such as those
leveled by Ehling, says Jonathan Segal, a Philadelphia-based partner in the
employment, labor, benefits and immigration practice group at Duane Morris.

Managers
and HR professionals, he says, must handle the matter delicately when an
employee comes forward as Ronco did.

"In
these instances, I don't think you say, 'I need to see [the Facebook post, for
example], and if you don't give it to me, you're fired.' What you say is,
'You've raised a very serious issue, and the decision to share this information
is entirely voluntarily. And, there will be no adverse consequences if you say
no.' Then, you at least have an argument that you tried to stay in the spirit of
the SCA."

HR
should also periodically remind all employees, he says, that certain company
rules apply with regard to social media -- even to "private" Facebook
posts -- and that employees' personal social media activity could be subject to
the organization's harassment, discrimination and other policies if they count
co-workers as Facebook friends or Twitter followers, for example.

"The
hope," says Segal, "is that someone will come forward if they've seen
something."

"In
the past four or so years, we've seen more than 20,000 new federal cases [in
which] social networking comes into play," says Shenkman. "And, with
more employees using social media each year, the number of cases keeps rising.
I can't imagine seeing anything other than a trend."

Stewart
echoes Shenkman's prediction.

"As
more employees become aware of the SCA," she says, "and more
plaintiffs' attorneys become versed in the nuances of the SCA, these claims
likely will increase. Because the use of social media by employees is only
growing, one can only imagine that SCA claims will grow as well."